Decision of the Commissioner, June 24, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010

In the Matter

- of the -

Application for a Mined Land Reclamation Permit, pursuant
to Article 23, Title 27, of the Environmental Conservation Law,
for a proposed mine in the Town of Erwin, County of Steuben

by

DALRYMPLE GRAVEL AND CONTRACTING COMPANY, INC.
DEC 8-4642-00101/00001

MLR 8093-30-0769

DECISION OF THE COMMISSIONER

The attached Hearing Report of Administrative Law Judge (ALJ) Richard R. Wissler on the application of Dalrymple Gravel and Contracting Company, Inc., for a Mined Land Reclamation Permit pursuant to Article 23, Title 27, of the Environmental Conservation Law, to mine unconsolidated sand and gravel in the Town of Erwin, Steuben County, is adopted in part as my Decision in this matter, as explained further below. The Hearing Report, along with the other materials referenced at the end of the report, is also accepted as the Final Environmental Impact Statement (FEIS) for this action, in which the Department is the lead agency pursuant to the State Environmental Quality Review Act (SEQRA).

The adjudication of two issues was directed by me in my Interim Decision in this matter, dated September 24, 2002: (1) noise impacts associated with the proposed project; and (2) the adequacy of the alternative site analysis provided in the draft Environmental Impact Statement.

I adopt in full the ALJ's findings of fact. With respect to the ALJ's discussion and conclusions on the first issue, noise impacts, I agree with the ALJ that the project, when operated in accordance with the Department's proposed draft permit, including revised Special Condition 12, avoids or minimizes adverse environmental noise impacts to the maximum extent practicable through the implementation of the proposed mitigation measures. These measures include the placement of the permanent structures of the project as far from the community as the geography of the site will allow, maintenance of the vegetative buffer, construction of earthen berms and the use of stockpiles as noise barriers. Moreover, in this regard, I direct that Special Condition 12, proposed by Department Staff, be included in the permit to be issued in this matter. Special Condition 12, addressing the use and placement of stockpiles of mined material, provides as follows:

During operation, the permittee shall direct the dragline operator to stockpile mined material in windrows running parallel to the Cohocton River. The front end loader shall load trucks on the west side behind theses stockpiles. The operator shall construct the stockpiles, on average, 20 feet in height. Material stockpiles in the floodway shall be minimized to the maximum extent practicable, while still providing for the optimum attenuation of noise generated by loader operation. When mining operations cease for more than seven days, all staged material shall be removed from the floodway.

My adoption of the ALJ's conclusion with respect to noise impacts does not, however, mean that I adopt the ALJ's expressions of preference for the use of the Leq noise descriptor rather than the L90 noise descriptor in measuring ambient noise levels. My determination with respect to the use of noise descriptors is that, based upon the record in this proceeding, the ALJ properly relied on applicant's use of the Leq noise descriptor in establishing baseline noise levels. As noted by the ALJ, intervenors' contrary proof was based upon a flawed methodology and, thus, was inherently unreliable. Given the fundamental flaws in intervenors' proof, the question whether Leq is preferable over L90 as a measure for ambient noise levels need not be addressed.

On the second issue, adequacy of the alternative site analysis, I concur with the conclusion of the ALJ that since the proposed project will not cause any unmitigatible significant adverse environmental impacts, including noise impacts, the consideration of an alternative site for the project need not be explored further. The alternative site analysis provided in this matter, as supplemented, is sufficient to permit, for the purposes of this application, the comparative assessment contemplated by 6 NYCRR 617.9(b)(5)(v).

Furthermore, the FEIS, which includes the record of this proceeding, affords an adequate basis for rendering the SEQRA findings which are necessary for this project to be approved. I, therefore, certify that:

The requirements of 6 NYCRR Part 617 have been met;

Consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, the action hereby approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable, including the effects disclosed in the final environmental impact statement; and

Consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects identified in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which are identified in the draft permit prepared by Department Staff, as supplemented and amended by the ALJ's hearing report.

Department Staff is hereby directed to issue a permit consistent with the ALJ's written recommendation.

NEW YORK STATE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION

/s/

_____________________________________

By: ERIN M. CROTTY, COMMISSIONER

Albany, NewYork

June 24, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter

- of the -

Application for a Mined Land Reclamation Permit, pursuant
to Article 23, Title 27, of the Environmental Conservation Law,
for a proposed mine in the Town of Erwin, County of Steuben

PROCEEDINGS

BACKGROUND

Project Description and Location

Dalrymple Gravel and Contracting Company, Incorporated, (the Applicant) proposes to mine unconsolidated sand and gravel from a 94-acre life of mine area within a 313 acre parcel in the Town of Erwin, Steuben County, to be known as the Scudder Sand and Gravel Pit, Smith Hill Road, over a period of twenty years resulting in the removal of approximately 3,000,000 cubic yards of sand and gravel. The mining would occur in four phases. At the conclusion of all mining activity, the excavated area will become a pond for recreational use with the unaffected land remaining agricultural or forested. In the instant proceeding, the Applicant seeks a five year mining permit to mine unconsolidated material from a 64-acre permit term area within the aforementioned 94-acre life of mine area.

Permits Required

By application dated January 19, 2000, the Applicant applied for a mined land reclamation permit pursuant to Environmental Conservation Law (ECL) Article 23, Title 27, and Parts 420 through 425 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Parts 420 through 425). This application proposed a life of mine area of 111.9 acres with 82.4 acres to be mined during the five year term of the permit. On July 11, 2001, the application was revised to reflect a reduced proposed life of mine area of 94 acres with 64 acres to be mined during the five year term of the permit.

SEQRA Status and Determination of Completeness

The Department of Environmental Conservation (the Department) is the lead agency for the review of the project under the State Environmental Quality Review Act (SEQRA, ECL Article 8 and 6 NYCRR Part 617). On July 28, 2000, the Department determined that the project may have a significant environmental impact and issued a SEQR Positive Declaration requiring the preparation of a draft Environmental Impact Statement (dEIS). On December 19, 2000, the Department accepted the dEIS prepared by the Applicant and issued a Notice of Complete Application. Pursuant to that Notice, the public was invited to submit comments on the application and dEIS through January 31, 2001.

LEGISLATIVE PUBLIC HEARINGS

Hearing of March 27, 2001

A Notice of Legislative Hearing, dated February 21, 2001, was published in the Environmental Notice Bulletin (ENB) and as a legal notice in the Star-Gazette and The Leader on February 28, 2001, each being a newspaper of general circulation in the area of the Town of Erwin. The Notice provided that a legislative hearing, pursuant to 6 NYCRR Parts 617 and 621, would be convened at 7:00 P.M., on March 27, 2001, at the Holiday Inn, 304 South Hamilton Street, Painted Post, New York, to receive unsworn statements from the public concerning the permit application and the dEIS.

The hearing went forward as announced on March 27, 2001, with a member of the Department's Region 8 Staff serving as hearing officer. A total of 24 persons spoke. All but one speaker expressed opposition to the proposed project. The issues of primary concern raised at the hearing focused on increased truck traffic, noise impacts, dust and air pollution, and impacts to the community's water supply. Other issues raised included impacts to wetlands, wildlife species and their habitat, the need for the project, the availability of alternative sites for the proposed activity and the overall effect of the project on the quality of life enjoyed by the community. As provided in the Notice of February 21, 2001, the filing of written comments was permitted until ten days after the hearing which was April 6, 2001. A total of 15 letters and e-mails were received expressing the same concerns raised during the hearing of March 27th.

Hearing of July 25, 2001

A Notice of Supplemental Legislative Public Hearing and Notice of Issues Conference, dated June 8, 2001, was published in the ENB on June 13, 2001, and as a legal notice in the Star-Gazette on June 19, 2001, and The Leader on June 17, 2001. The Notice provided that a supplemental legislative hearing, pursuant to 6 NYCRR Parts 617, 621 and 624, would be convened at 10:00 A.M., July 25, 2001, at the Holiday Inn, 304 South Hamilton Street, Painted Post, New York, to receive additional oral or written unsworn statements from the public on the application and dEIS. The Notice further provided that the proceedings of the legislative public hearing held on March 27, 2001, and all written comments submitted thereto through April 6, 2001, would be adopted and made part of the record of the supplemental legislative public hearing of July 25th.

The hearing went forward on July 25, 2001, and was presided over by Administrative Law Judge Richard R. Wissler, the undersigned. A total of 24 persons attended the hearing. Six individuals spoke and one submitted a written comment. The concerns expressed focused primarily on traffic and noise impacts and the effect of the project on the character of the community.

ISSUES CONFERENCE

Conference Participants

Pursuant to the above published Notice of June 8, 2001, a pre-adjudicatory hearing issues conference was held at 2:00 P.M. on July 25, 2001, at the aforementioned Holiday Inn to determine what issues, if any, within the scope of the Department's regulatory purview required adjudication and to consider all timely filed applications for party status to participate in any adjudicatory hearing which might be convened in this matter. The participants at the conference were the Applicant, Department Staff and CPLA Against Gravel Mines (CPLA), a voluntary association of residents of the hamlets of Coopers Plains and Long Acres.

The Applicant was represented by Kevin M. Bernstein, Esq., of the law firm of Bond, Schoeneck & King, LLP, One Lincoln Center, Syracuse, New York 13202-1355, as well as Robert Dalrymple. Also attending on behalf of the Applicant was William Roe, P.E., a highway designer and traffic consultant.

The Department Staff was represented by Leo J. Bracci, Esq., Assistant Regional Attorney, in the Department's Region 8 Office, 6274 East Avon-Lima Road, Avon, New York 14414-9519. Other members of Department Staff also attending the issues conference were Department Mining Program Supervisor Steven Army, Regional Flood Control Engineer Scott Foti, wildlife biologist Jim Fodge and Mining Program specialist Linda Collart.

CPLA was represented by Peter G. Ruppar, Esq., of the law firm of Duke, Holzman, Yaeger & Photiadis LLP, 2500 Main Place Tower, Buffalo, New York 14202. Also attending on behalf of CPLA were wetlands specialist Donald G. Wilson of Wilson Environmental Technologies, Inc.; traffic consultant Dean Collins of FRA Engineering, P.C.; William L. Heitzenrater, a biologist and President of AFI Environmental, Inc.; Albert Benton, an archaeologist also with AFI Environmental, Inc.; and James C. Hayes, a mechanical engineer and member of CPLA.

Conference Proceedings

The issues conference began with the identification of the various documents constituting the application and the draft permit, including certain documents referenced as special conditions in the proposed permit.

In accordance with the Notice of June 8, 2001, petitions requesting full party or amicus status pursuant to 6 NYCRR 624.5(b) were to be filed by July 11, 2001. Only one petition for full party status was received, being that of CPLA on July 11, 2001. No other petitions were received. The mandatory parties, the Applicant and Department Staff, were asked to indicate what, if any, objection they had as to the standing of CPLA as a party to the instant proceeding. The Applicant indicated that it had no objection with respect to CPLA's environmental interest in the matter and agreed that CPLA's petition comported with the requirements of 6 NYCRR 624.5(b)(1). Department Staff also had no objection with respect to the standing of CPLA.

Thereafter, the conference focused on the various issues asserted by CPLA to be both substantive and significant and therefore appropriate for adjudication pursuant to 6 NYCRR 624.4(c). These issues addressed the following matters: wetlands, noise, alternative site analysis, traffic, endangered and threatened species, deer wintering area, excavation into primary aquifer, visual impacts, segmentation, adequacy of archaeological investigation, floodplain and surface water.

Post-Conference Proceedings

During the issues conference on July 25, 2001, it was determined that the property in question contained freshwater wetlands not currently designated or mapped by the Department. While the Department Staff indicated that it had not delineated the entire area of the unmapped wetland, it had ascertained that border of the wetland closest to the proposed life of mine area. A map of the entire property entitled "Mining Plan" and depicting the life of mine limit was identified at the issues conference as Exhibit 6. At the close of the conference on July 25th, I directed that Department Staff delineate, on a copy of Exhibit 6, the borders of the aforementioned unmapped wetland that are closest to the proposed mine area. This was done and received by me on August 6, 2001, with copies provided to all parties. This map is designated Exhibit 6A.

Moreover, at the issues conference, the Applicant asserted that the U.S. Army Corps of Engineers (ACOE) would be making a Determination of No Jurisdiction with respect to certain federal wetlands alleged to be on the subject property. I directed that I be provided with a copy of such determination immediately upon its availability. On August 7, 2001, I received a copy of a letter dated July 31, 2001, from the Regulatory Branch of the Buffalo District of the ACOE to Robert H. Dalrymple, indicating that the ACOE has determined that they have no jurisdiction over the mining proposal and that a permit from them is not required. This letter is designated Exhibit 21.

Ruling on Issues and Party Status

On September 25, 2001, the ALJ ruled that CPLA would be granted full party status in the proceeding inasmuch as it had met the requirements of 6 NYCRR 624.5(d) by filing a petition that comported with the requirements of 6 NYCRR 624.5(b)(1) and (2), raised issues that were both substantive and significant, and demonstrated an adequate environmental interest.

The ALJ also ruled that two issues appropriate for adjudication had been raised by CPLA, namely, noise impacts associated with the proposed project and the adequacy of the alternative site analysis provided by the Applicant in the dEIS. With respect to noise impacts, the ALJ ruled that since the ambient noise level has not been reasonably established, the impacts of truck noise from the current and proposed mining operations were not accounted for, and the effects of site topography, particularly the amphitheater effect of the steep hillside immediately to the south of the site, on noise levels was not considered, a substantive and significant issue had been raised. With respect to the adequacy of the alternative site analysis provided by the Applicant in the dEIS, the ALJ ruled that the failure of the dEIS to provide a description and evaluation of reasonable alternative sites for the proposed sand and gravel mine, particularly the Elmer Smith farm parcel, to a level of detail sufficient to permit the comparative assessment of the alternative site with the proposed site, as contemplated by 6 NYCRR 617.9(b)(5)(v), raised an issue that is both substantive and significant.

Appeal of ALJ's Ruling and Commissioner's Interim Decision

Upon appeals by the parties and by Interim Decision, dated September 24, 2002, the Commissioner affirmed the ALJ's ruling, but with certain modifications. As to noise impacts, the Commissioner determined that while the proper ambient noise level would be an issue appropriate for adjudication, the impacts with respect to truck traffic and the amphitheater effect of the topography of the site should not be adjudicated as independent issues. The amphitheater effect and the impacts of traffic on ambient noise would be accounted for in the adjudication of the proper ambient levels, she stated. As to the adequacy of the alternative site analysis, the Commissioner determined that this also was an issue appropriate for adjudication but that the ALJ's ruling in this regard had been too narrow as it suggested that the additional factors for consideration in such analysis, to be supplied by the Applicant, would be limited to the economic or business aspects of operating a mine. As the Commissioner observed, "Without intending to provide guidance to the Applicant as to what factors might be reasonable to take into consideration in providing a comparative analysis of the two sites, any such analysis would be almost certainly inadequate if it failed, for example, to include a comparative assessment of noise impacts at each site." Subject to this modification, the Commissioner sustained the ALJ's ruling on the issue.

Supplemental Alternative Site Analyses and Acquisition of SCL Ventures by the Applicant

In December 2002, the Applicant submitted a Supplemental Alternative Site Analysis providing a comparison of the Scudder site in the Town of Erwin and the Elmer Smith Farm site in the Town of Campbell. This document was received in evidence at the adjudicatory hearing as Exhibit 27. In this analysis, the Applicant further advised that it was seeking to acquire the assets of SCL Ventures, LLC, (SCL) and, indeed, had entered into an agreement to purchase that company. The assets of SCL are located on a leased parcel of land in the Town of Campbell and lie approximately 2000 feet north of the Scudder site, the subject of the instant application. The assets consist of a complete gravel processing plant, two bituminous concrete plants and rights to mine the property. Moreover, on October 28, 2002, SCL applied to the Department for the transfer of the mining, air quality and related permits for the SCL property to the Applicant. On December 17, 2002, the Applicant completed the purchase of the assets of SCL, and by letter dated December 24, 2002, so advised the Department. This letter of December 24, 2002, was sent in response to inquiries by the Department concerning the SCL acquisition. Annexed to the letter is a second Supplemental Alternative Site Analysis, prepared by the Applicant, comparing the Scudder, Smith and SCL properties.(1) This second analysis, as well as the Applicant's letter of December 24, 2002, was received in evidence at the adjudicatory hearing as Exhibit 29.

Adjudicatory Hearing

The adjudicatory hearing in this matter was convened on January 14, 2003, at the Holiday Inn, 304 South Hamilton Street, Painted Post, New York.

As had been the case previously at the Issue Conference, the Applicant was represented by Kevin M. Bernstein, Esq., of the law firm of Bond, Schoeneck & King, LLP, One Lincoln Center, Syracuse, New York 13202-1355, and Department Staff was represented by Leo J. Bracci, Esq., Assistant Regional Attorney, in the Department's Region 8 Office, 6274 East Avon-Lima Road, Avon, New York 14414-9519. For the purpose of the adjudicatory hearing, CPLA was represented by its attorney, George J. Welch, Esq., of the law firm of Welch & Zink, 17-19 East Market Street, Corning, New York 14830.

With respect to the issue of the adequacy of the alternative site analysis, the parties agreed that this issue would be addressed in closing briefs and, accordingly, the testimony received at the adjudicatory hearing addressed only the issue of noise impacts.

The witnesses who testified on behalf of the Applicant were Robert D. O'Neal, B.A., M.S., a Certified Consulting Meteorologist (C.C.M.) and Senior Consultant to Epsilon Associates, Inc., of Maynard, Massachusetts; and Robert H. Dalrymple, P.E., President of Dalrymple Gravel and Contracting Co., Inc., of Pine City, New York, the Applicant in this proceeding.

Testifying on behalf of CPLA was Charles E. Ebbing, B.S.E.E., M.S.E.E., President of Ebbing Acoustics of Fayetteville, New York, and an Adjunct Professor of Architectural Acoustics at Rensselear Polytechnic Institute, Troy, New York, and an Adjunct Professor of Mechanical Engineering at Syracuse University, Syracuse, New York.

While reserving its right to do so at the outset of the hearing, Department Staff elected not to call any witnesses at the adjudicatory hearing.

The parties submitted closing briefs on or about March 7, 2003, reply briefs on or about March 21, 2003, and surreply briefs on or about March 31, 2003. The hearing record closed on April 3, 2003, upon receipt of the surreply briefs by the ALJ.

APPLICABLE REGULATORY PROVISIONS

Environmental Conservation Law (ECL)

In delineating the general functions, powers and duties of the Department and the Commissioner, ECL 3-0301(1)(i) provides that the Commissioner "shall have power to provide for prevention and abatement of all water, land and air pollution including but not limited to ... noise ...."

In the written description of the mined land-use plan required by ECL 23-2713, a applicant is directed to articulate what measures are "to be taken to minimize adverse environmental impacts resulting from the mining operation."

Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)

Section 422.2(a) of 6 NYCRR directs that the mining plan shall indicate "the applicant's proposed method of mining including proposals for minimizing the effect of mining on the environment and on the property, health, safety and general welfare of the people of the State."

Section 422.2(c)(4)(i) of 6 NYCRR directs that the applicant provide a description of its proposed method for minimizing the effect of its mining operation on the people of the State to the extent necessary to achieve compliance with applicable regulations, and that to achieve this objective it may employ various or similar methods including "the utilization of equipment which is adequately muffled to prevent excessive noise and vibration" and "the use of screening for control of dust and/or noise."

Section 422.2(c)(4)(iii) of 6 NYCRR states that screening "may consist of either artificial or natural barriers such as berms, fences, shrubs, trees or any combination of these which have the ... effect of ... reducing noise levels."

The word "environment" is defined at Section 617.2(l) of 6 NYCRR and "means the physical conditions that will be affected by a proposed action, including ... noise ...."

In making its findings pursuant to the mandates of SEQRA, a lead agency, in accordance with 6 NYCRR 617.11(d)(5), must "certify that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable."

Pursuant to 6 NYCRR 617.9(b)(5)(v), while to some extent flexible, a draft Environmental Impact Statement (dEIS) must contain certain elements including "a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor. The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed." Continuing, the Section provides that "the range of alternatives may ... include ... alternative sites," with the proviso that such "site alternatives may be limited to parcels owned by, or under option to, a private project sponsor."

APPLICABLE DEPARTMENT PROGRAM POLICY

On October 6, 2000, as revised February 2, 2001, and pursuant to the authority of ECL Articles 3, 8, 23 and 27, the Department's Division of Environmental Permits issued Program Policy Memorandum, DEP-00-1, entitled Assessing and Mitigating Noise Impacts. As indicated in its cover page, although the guidance does not preclude Department Staff from departing therefrom when circumstances dictate, and such departure otherwise comports with applicable regulation, it does present "noise impact assessment methods, examines the circumstances under which sound creates significant noise impacts, and identifies avoidance and mitigative measures to reduce or eliminate noise impacts." While it does not operate as a rule of law, nor create any enforceable right, as a Program Policy Memorandum of the Department, it provides guidance to Department Staff as well as the regulated community to assist in the interpretation of the regulatory scheme as well as to ensure the consistent and uniform application of those regulations. In this context, it is applicable to the instant matter.

FINDINGS OF FACT

The Proposed Site

Dalrymple Gravel and Contracting Company, Incorporated, (the Applicant) proposes to mine unconsolidated sand and gravel from a 94 acre life of mine area within a 313 acre parcel in the Town of Erwin, Steuben County, to be known as the Scudder Sand and Gravel Pit, Smith Hill Road, over a period of twenty years resulting in the removal of approximately 3,000,000 cubic yards of sand and gravel.

The proposed site is located to the west of the hamlet of Coopers Plains. The Cohocton River flows generally to the south and east, separating the community from the site, varying in width from 150 to 200 feet in this area. In addition, actively used railroad tracks and a 90 foot wide railroad right of way run in a southeasterly direction, for the most part, to the easterly side of the Cohocton, forming the southwestern boundary for most of the residences in Coopers Plains. Being somewhat triangular in shape, from its widest northerly border along Smith Hill Road, the site runs southeasterly along the western bank of the Cohocton River, tapering between the River and a steep wooded hillside which forms its westernmost border. Approximately 2000 feet to the north of the site is an existing and active sand and gravel mining operation with a gravel processing plant and two bituminous concrete plants known as SCL Ventures, LLC.

Noise Impacts of the Proposed Project

The mining would occur in four phases with Phase 1 located at the southernmost tapered end of the site and Phases 2, 3 and 4 located respectively north thereof. Phase 4 lies at the nearest proximity to the residences of Coopers Plains, with the closest such residence being approximately 700 feet from the mining activity proposed for that phase.

Typical mobile equipment to be utilized during the proposed mining operation at the site will include a Bucyrus Erie 88-B dragline, a Caterpillar 980F loader, and a 35-ton haul truck, equipped with back-up alarms, as appropriate and as mandated by regulation.

A crushing and screening plant will be located approximately 600 feet to the west of the proposed Phase 4 area.

To establish the ambient noise level experienced in a particular environmental setting, it is appropriate to monitor fluctuating sound levels over time and express them as a steady state sound level. Essentially expressing the average of the sound energy over time, this is known as the Equivalent Sound Level and is denoted Leq. As Department Program Policy Memorandum DEP-00-1 entitled, Assessing and Mitigating Noise Impacts, (Noise Impacts Guidance) states, at page 7, Leq is "directly related to the effects of sound on people since it expresses the equivalent magnitude of the sound as a function of frequency of occurrence and time." Moreover, the Noise Impacts Guidance asserts, at page 12, that "The Leq value provides an indication of the effects of sound on people. It is also useful in establishing the ambient sound levels at a potential noise source."

Between the eastern surveyed boundary of the Applicant's property and the residences of Coopers Plains lies the aforementioned railroad tracks and railroad right of way, sections of the Cohocton River, and an area of dense vegetation varying approximately 200 feet to 700 feet or more in width along the boundary. This area is not used for residential, recreational, farming or other purposes.

In choosing locations to place receptors to monitor and determine ambient sound levels, the Department's Noise Impacts Guidance suggests that appropriate locations would be either along the property line of the proposed project, or the point of use or habitation of adjacent properties.

In placing receptors to monitor and determine ambient sound levels, CPLA chose two locations near the Applicant's property boundary and one location approximately 200 feet inside the boundary and upon the Applicant's property.

In placing receptors to monitor and determine ambient sound levels, the Applicant chose three locations representative of the used portion of adjacent properties.

At the two monitoring locations selected by CPLA along the boundary of the Applicant's property, a total of ten noise samples were taken, each of approximately one minute duration. At the receptor location on the Applicant's property and approximately 200 feet inside its property boundary, 34 noise samples were taken, each of approximately one minute duration. All of the readings taken by CPLA were measured by the L90 scale, a designation referring to a sound pressure level threshold that is exceeded 90 percent of the time and often used to designate the background noise level. None of the readings taken by CPLA utilized the Leq scale. No sound impact modeling was undertaken by CPLA.

The Applicant selected three publicly accessible monitoring receptor sites in locations at the point of use of adjacent properties in representative directions along the boundary between the proposed project and Coopers Plains, and not near any large reflective surfaces. The locations selected were as follows:

Location 1: In front of the residence at 9255 Main Street, at the intersection of Main Street and Smith Hill Road. This location is the closest residence to Phase 4 of the proposed project. Sound levels at this location are representative of what residences currently experience along the truck route used by the existing mining operation, SCL Ventures, LLC, and the proposed truck route for the instant project. Noise sources at this location included traffic on Smith Hill Road, Main Street and Interstate 86; aircraft overflights; train horns; and dogs barking at a nearby veterinarian's office.

Location 2: In the railroad right-of-way, to the Coopers Plains side of the railroad tracks, facing the nearest residents to Phase 4 of the proposed project, along Erie Street. This location represents the closest possible residential use on an adjacent property to the proposed project. Noise sources at this location included traffic on Smith Hill Road, Main Street and Interstate 86; aircraft overflights; train horns and geese.

Location 3: In the railroad right-of-way, to the Coopers Plains side of the railroad tracks, facing the nearest residents to Phase 1 of the proposed project, along Erie Street. Phase 1 lies at the southeastern end of the proposed mine. Noise sources at this location included traffic on Main Street and Interstate 86, aircraft overflights, train horns, a sawmill operated by DeMonstoy Lumber, a lawn tractor and geese.

Concurrent broadband sound levels were measured continuously by the Applicant at all three locations for 13 hours on October 23, 2002, from 7:00 A.M. to 8:00 P.M., on an A-weighted scale, which discriminates in favor of those frequencies most detectable by the human ear, namely, 20 to 20,000 Hertz. Short-term broadband and octave band measurements were also made periodically in the morning and in the evening at each of the three receptor locations. Measurements were taken a height of five feet above the ground. National Weather Service data indicates that in the area throughout the day on October 23, 2002, the skies were cloudy; the temperature ranged from a low of 360 F to 450 F; the relative humidity averaged 73%, with a morning high of 92% and afternoon low of 56%; and the winds were generally from the north at 6 to 10 mph.

For short-term and octave band measurements, the Applicant utilized a CEL Instruments Model 593.C1 Precision Sound Level Analyzer equipped with a CEL-257 Type 1 Preamplifier, a CEL-250 half-inch electret microphone and a four-inch foam windscreen. This instrumentation comports with the "Type 1 - Precision" standards for acoustical measuring devices delineated in American National Standards Institute (ANSI) standard S1.4. The instrument, which can measure from 5 dB to 140 dB in seven ranges, was calibrated in the field on October 23, 2002, both before and after the aforementioned measurements were taken, using an acoustical calibrator which itself satisfies applicable ANSI standards, and was found to be functioning properly upon each calibration.

For continuous monitoring, the Applicant utilized a Larson Davis Model 812 sound level meter. The Model 812 actually used meets Type 1 ANSI standard S1.4-1983 for sound level meters and had been calibrated within the preceding 12 months by an independent laboratory. The instrument has a measurement range of 23.5 dBA to 130 dBA and has the ability to log statistical data over time.

These measurements indicated that on an hourly basis, baseline ambient noise levels, expressed in Leq, at each of the three receptor locations were within the following ranges:

Location 1: 52.7 dBA to 64.5 dBA

Location 2: 46.2 dBA to 80.2 dBA

Location 3: 46.0 dBA to 69.4 dBA

To facilitate the analysis and to particularly allow a direct comparison with the Town of Erwin noise ordinance, an examination of the data gathered for the time periods critical to the local law, divided into one hour intervals, 7:00 A.M. to 8:00 A.M., 8:00 A.M. to 9:00 A.M., 12:00 P.M. to 1:00 P.M., 1:00 P.M. to 2:00 P.M., 5:00 P.M. to 6:00 P.M. and 6:00 P.M. to 7:00 P.M., revealed that the average baseline ambient sound levels, expressed in Leq, for the three receptor locations was as follows:

Location 1: 57.8 dBA

Location 2: 51.1 dBA

Location 3: 55.6 dBA

To the extent that site topography, particularly any amphitheater effect caused by the steep mountainside to the south and west of the project site, may amplify or otherwise impact noise in the environment in and around the site, this effect, if any, is accounted for in the baseline ambient sound levels established above. In the same manner, existing truck traffic noise impacts are also accounted for in these baseline ambient sound levels.

Excavation at the proposed mining operation will be accomplished primarily by three pieces of equipment, a dragline, a front end loader equipped with a back-up alarm and a haul truck. The operation will also include an on-site crushing and screening plant. The Applicant operates a gravel mine in Chemung, New York, which utilizes equipment similar to the equipment to be used at the proposed project. A-weighted and octave band sound level data for this equipment was obtained at the Applicant's Chemung facility, thus providing actual in-the-field reference data for the sound level analysis conducted in the instant project. All equipment was in good repair and properly muffled in accordance with the manufacturer's specifications. All of the equipment was tested at full throttle and sound levels for each piece separately, as well as all three pieces simultaneously, expressed in Leq, were taken at various distances from the equipment ranging from 50 feet through 1600 feet. In addition the back-up alarm on the front-end loader was measured at low idle. Sound levels for the screening and crushing plant were also measured at distances ranging from 100 to 1000 feet.

The dragline used at the Chemung facility, and typical of the type to be used at the proposed project, is a Bucyrus Erie Model 88-B. Sound levels for this equipment at full throttle were taken at distances ranging from 50 feet to 400 feet. At 50 feet, the measured Leq was 77.0 dBA.

The front-end loader proposed for use at the facility is a Caterpillar Model 980F Wheel Loader, having a 7.0 cubic yard bucket capacity and powered by a Caterpillar 3406C diesel engine with a flywheel power rating of 275 horsepower. Sound levels for this same equipment were measured at the Chemung facility at distances ranging from 50 feet to 900 feet. At 50 feet, the Leq for this equipment, at full throttle, was 83.9 dBA.

The haul truck proposed for use at the facility is a Caterpillar 769C Off-Highway Truck with a 30.9 cubic yard or 35 ton capacity and powered by a Caterpillar 3408 diesel engine with a flywheel power rating of 450 horsepower. Sound levels for this same equipment were measured at the Chemung facility at distances ranging from 50 feet to 800 feet. At 50 feet, the Leq for this equipment, at full throttle, was 83.7 dBA.

All three pieces of the above-named equipment were run simultaneously at full throttle and the sound levels measured at distances ranging from 50 feet to 1600 feet. At 50 feet, the Leq for these three pieces of equipment combined was 87.1 dBA.

With respect to the crushing and screening operation at Chemung, sound level measurements showed that, at 400 feet, the Leq was 68.7 dBA.

The back-up alarms to be used are self adjusting and can emit an alarm, when measured at 4 feet, ranging from 87 dBA to 112 dBA. The level of the alarm's loudness is a function of the ambient noise environment around it such that the alarm emits its warning sound at a level of 5 dBA above the ambient noise environment. At 50 feet, with the front-end loader at idle, the back-up alarm measured an Leq of 73.5 dBA.

In order to model worst-case sound level impacts, four representative locations in Coopers Plains were selected by the Applicant. They are similar in location to the sites selected for placement of the receptors for the establishment of baseline ambient sound levels, which were on publically accessible lands, but are located on private property and were, for this reason, not otherwise accessible. Accordingly, because of the similarity in location, baseline ambient sound levels at the modeling locations can be assumed to be the same as the levels at the receptor sites, for the purpose of the instant analysis. The four locations selected for sound level modeling evaluation were as follows:

In selecting points for potential noise sources in order to satisfy modeling requirements, various factors must be considered. The positions of the dragline, front-end loader and haul truck will necessarily change depending upon which particular Phase the operation is mining, and where within that Phase the mining activity is being pursued. Modeling Evaluation Locations 1 and 2 will be closest to the mining activity at the site during the mining of Phase 4. Modeling Evaluation Locations 3 and 4 will be closest to the mining activity at the site during the mining of Phase 1. Moreover, the mechanical configuration of a dragline, and the space required for it to maneuver, will require that it remain 100 to 200 feet back from the life of mine limit. For safety reasons, the front-end loader and the haul truck will remain 200 to 300 feet from the dragline. With these concerns in mind, the Applicant selected two areas of potential noise in Phase 4 where mining activities would occur, one on the east side of the Phase and one on the west side of the Phase, labeled "A" and "B" respectively, and one potential source of noise in Phases 2 and 1, each labeled "A". At each noise source point so assumed, the Applicant designated the probable location of the dragline, the front-end loader and the haul truck. For the purposes of the modeling, all equipment was assumed to be at full-throttle simultaneously and the crushing and screening plant in full operation. The distances between these noise source modeling points and the Modeling Evaluation Locations varies up to 4300 feet, with the closest point of potential mining activity being 700 feet from Location 2, the nearest backyard on Erie Street, at Point "A" in Phase 4.

In the first modeling scenario conducted by the Applicant, no mitigation was assumed and the attenuation of a potential source noise due primarily to hemispherical spreading was evaluated. Expressing the mathematical relationship, elemental to the physics of sound propagation, that sound pressure levels from a noise source at a receptor are reduced in inverse proportion to the square of the distance between the noise source and the receptor, hemispherical spreading results in a 6 dBA decrease in sound level for every doubling of distance between a noise source and a receptor. Additional attenuation factors were then applied as appropriate. Given the distances involved between the modeling points and the modeling receptor locations, it was assumed that attenuation due to atmospheric absorption would not vary significantly between them. Attenuation due to ground and vegetation attenuation was only applied in the calculations where the dense vegetative buffer on the east side of the Cohocton River clearly screened potential mining activity from the modeling receptor locations. Although attenuations of as much as 20 to 25 dBA are possible, such vegetative attenuation was conservatively capped at 10 dBA.

The foregoing analysis, which assumed no mitigation, demonstrated that for Modeling Evaluation Location 1, the private residence located at 9260 Erie Street, the worst-case total equipment sound levels would be expected to range from 42 dBA during the mining of Phase 1 to 54 dBA at the closest approach during the mining of Phase 4. For Modeling Evaluation Location 2, the nearest residential backyard point of use along Erie Street, worst-case total equipment sound levels would be expected to range from 42 dBA during the mining of Phase 1 to 56 dBA during the mining of Phase 4. For Modeling Evaluation Location 3, the private residence at 9156 Erie Street, worst-case total equipment sound levels would be expected to range from 32 dBA during the mining of Phase 4 to 35 dBA during the mining of Phase 1. For Modeling Evaluation Location 4, the nearest private residence on Race Street, worst-case total equipment sound levels would be expected to range from 38 dBA during the mining of Phase 4 to 42 dBA during the mining of Phase 1. Total equipment sound levels in this analysis included not only the mobile equipment but the crushing and screening plant as well. The analysis also demonstrated that the sound levels from the back-up alarms will always be substantially less than the combined sound levels of the mining equipment.

This same analysis was repeated by the Applicant assuming the existence of certain noise mitigation conditions. These mitigation conditions assumed, first, that proposed mining operations would be conducted such that an average 20 foot high stockpile of material would always be situated between the working front-end loader and the residences of Coopers Plains, and, second, that an earthen, vegetated berm, 30 feet high and approximately 600 feet long, would shield the crushing and screening plant from the community, with such plant placed as far from the residences of Coopers Plains as the geography of the proposed site would permit. Since the berm would not completely shield the two southernmost model evaluation locations, Locations 3 and 4, this mitigation factor was not considered in evaluating mitigated noise impacts at these locations.

The analysis, with mitigation, demonstrated that at Modeling Evaluation Location 1, the private residence located at 9260 Erie Street, the worst-case total equipment sound levels would be expected to range from 35 dBA during the mining of Phase 1 to 51 dBA at the closest approach during the mining of Phase 4. For Modeling Evaluation Location 2, the nearest residential backyard point of use along Erie Street, worst-case total equipment sound levels would be expected to range from 36 dBA during the mining of Phase 1 to 53 dBA during the mining of Phase 4. For Modeling Evaluation Location 3, the private residence at 9156 Erie Street, worst-case total equipment sound levels would be expected to range from 31 dBA during the mining of Phase 4 to 33 dBA during the mining of Phase 1. For Modeling Evaluation Location 4, the nearest private residence on Race Street, worst-case total equipment sound levels would be expected to range from 36 dBA during the mining of Phase 4 to 40 dBA during the mining of Phase 1.

During peak hours of operation, the project is expected to generate a total of 20 truck trips per hour, 10 trips into the site and 10 trips out of the site. Using sound level data supplied by the Federal Highway Administration Traffic Noise Model, expected sound level contributions from 20 truck trips at the model receptor locations were calculated and expressed in Leq. For Modeling Evaluation Location 1, the private residence located at 9260 Erie Street, predicted sound levels from off-site truck traffic would be 54.5 dBA. For Modeling Evaluation Location 2, the nearest residential backyard point of use along Erie Street, predicted sound levels from off-site truck traffic would be 46.7 dBA. For Modeling Evaluation Location 3, the private residence at 9156 Erie Street, predicted sound levels from off-site truck traffic would be 35.1 dBA. For Modeling Evaluation Location 4, the nearest private residence on Race Street, predicted sound levels from off-site truck traffic would be 33.6 dBA.

The foregoing sound level impact evaluation demonstrates that, with the mitigation assumed, total future ambient sound level increases due to the proposed project will exceed existing ambient sound levels at the modeling evaluation locations by decibel levels ranging from less than 1 dBA to 4.6 dBA.

Section 130-82 of the Town or Erwin Zoning Law, entitled "Noise control," provides in pertinent part that a noise shall not exceed ambient noise levels established during the time periods indicated therein, including the time periods indicated in Finding of Fact 17, above, "by more than seven (7) decibels above the established" ambient noise levels. The analysis performed by the Applicant demonstrates that this 7 dBA statutory threshold will not be exceeded by the increased noise levels generated by the proposed project.

Department Program Policy Memorandum DEP-00-1 entitled, Assessing and Mitigating Noise Impacts, at page 14, suggests: "The addition of any noise source, in a non-industrial setting, should not raise the ambient noise level above a maximum of 65 dB(A)." The analysis performed by the Applicant demonstrates that with the increased noise levels generated by the proposed project, the highest potential increased ambient level will be 60.0 dBA, at Modeling Evaluation Location 1, the private residence located at 9260 Erie Street. Accordingly, increased ambient noise levels occasioned by the proposed project will not exceed the 65 dBA threshold suggested by Department Program Policy Memorandum DEP-00-1.

Department Program Policy Memorandum DEP-00-1 entitled, Assessing and Mitigating Noise Impacts, at page 14, suggests: "In non-industrial settings the SPL [sound pressure level] should probably not exceed ambient noise by more than 6 dB(A) at the receptor." Since the highest increased ambient level to be anticipated by the analysis is 4.6 dBA, it is apparent that increased ambient noise levels occasioned by the proposed project will not exceed the 6 dBA threshold suggested by Department Program Policy Memorandum DEP-00-1.

Alternative Site Analysis

On April 18, 2000, the Applicant obtained an option to purchase land located in the Town of Campbell and owned by one Elmer Smith. It is the Applicant's intention to develop this site as a source of additional aggregate, as its business needs require. This site, consisting of 244 acres, lies approximately 2 miles northwest of the Scudder site, subject of the instant application, and along the north side of Interstate 86.

On December 17, 2002, the Applicant acquired the assets of SCL Ventures, LLC, (SCL). The assets of SCL are located on a leased parcel of land in the Town of Campbell and lie approximately 2000 feet north of the Scudder site, the subject of the instant application. The assets consist of a complete gravel processing plant, two bituminous concrete plants and rights to mine the property.

By separate submissions received in evidence at the adjudicatory hearing held herein, the Applicant provided a comparison of the Scudder, Smith and SCL sites which included a description of each site and an examination of various environmental and economic factors related to each project including ecological resources, groundwater, surface water, noise impacts, air quality, visual resources, archaeological impacts, community impacts, property value impacts, and traffic impacts.

DISCUSSION

Noise Impacts of the Proposed Project

The intervenors argue that existing baseline ambient noise levels in the Coopers Plains community should be established in L90, as this is an appropriate measure used to designate the background noise level. In support of this position, CPLA cites the Department's Noise Impacts Guidance which states L90 is often used to designate the background noise level." (Transcript of Adjudicatory Hearing, pages 187-193; hereinafter abbreviated T. and page number. Exhibit 23, p. 12, and Exhibit 35.) CPLA argues that this baseline ambient noise level value, expressed in L90, is 42.2 dBA. This means, in their view, that 42.2 dBA is the baseline ambient noise level experienced by the community of Coopers Plains, and that this sound pressure level is exceeded 90% of the time by other intrusive noises such as that from the overflight of aircraft and the horns of passing trains. To the extent that equivalent sound level (Leq) is relevant, they argue, it should only be used to measure sound levels at a noise source, not at a receptor. This position comports with the aforementioned Department Noise Impacts Guidance, they assert, as it states that Leq is "useful in establishing the ambient sound levels at a potential noise source." (Exhibit 23, p.12.)

Before addressing the issue of the appropriateness of L90 in establishing baseline ambient noise levels, it should be noted that the factual data provided by CPLA is sparse and of questionable reliability. CPLA's Environmental Noise Measurement Report, prepared by Ebbing Acoustics of Fayetteville, New York, Exhibit 26, indicates that a total of 44 sound level readings, each of 1 minute duration, were taken at three receptor locations chosen by them, on November 13, 2002, between 11:17 A.M. and 2:54 P.M. The receptor locations chosen by Ebbing were designated Locations 1, 2 and 3. Four of the 44 readings were taken at Location 1, the first at 11:17 A.M., and the second, third and fourth, 2 minutes apart, at 12:26 P.M., 12:28 P.M. and 12:30 P.M. Six of the 44 readings were taken at Location 3, the first at 12:10 P.M., and the second, third, fourth, fifth and sixth, 2 minutes apart, at 3:12 P.M., 3:14 P.M., 3:16 P.M., 3:18 P.M. and 3:20 P.M. The remaining 34 readings, comprising over 75% of the data collected, were taken at Location 2, with three readings taken in the morning between 11:50 A.M. and 11:56 A.M., and the rest taken at two minute intervals between 1:56 P.M. and 2:54 P.M.

Critical to the reliability of any data collected to determine baseline ambient noise levels is the placement of the receptor instruments to collect that data. The Department's Noise Impacts Guidance is very clear in this regard, stating that "Appropriate receptor locations may be either at the property line of the parcel on which the facility is located or at the location of use or inhabitance on adjacent property." (Exhibit 23, p. 13.) This means that either the property line of the proposed project can be used, or if appropriate to the circumstances, receptors can be located upon adjacent properties at points remote from the property line, if the actual use of the adjacent property is at some distance from the property line. Thus, while it may be appropriate to encroach upon adjacent properties in the placement of receptor instruments, it is never appropriate to encroach upon the proposed project property to place those same instruments. But this is precisely what was done in the preparation of the Ebbing study, Exhibit 26. While Ebbing Locations 1 and 3 were along and to the Coopers Plains side of the proposed project's property line, Ebbing Location 2 was actually located on the proposed project's property and, in fact, encroached upon the property to a point approximately 200 feet inside its boundary line. Panel 45 of Exhibit 35, submitted by CPLA, is a reproduced section of the aerial map, Figure 3, provided by Epsilon Associates, Inc., in their report submitted on behalf of the Applicant. (Exhibit 24.) The yellow line dividing the picture on the diagonal from upper left to lower right, is the boundary line of the Applicant's property. Lands to the right side of the yellow line are in Coopers Plains, lands to the left of the yellow line are the property of the Applicant and site of the proposed project. As is apparent, Ebbing Location 2, where 34 of 44 sound level readings were taken, lies upon and substantially encroaches upon the Applicant's property. Accordingly, more than 75% of the data submitted by CPLA to establish baseline ambient noise levels was taken at a location not recognized as an appropriate site for the collection of such data and is, therefore, inherently unreliable.

In addressing whether L90 or Leq is the appropriate descriptor for establishing baseline ambient noise levels, it is important, in the first instance, to remember the overarching concern fundamental to this analysis, which is, have the requirements of SEQR been satisfied? Section 617.11(d)(5) of 6 NYCRR requires that the Department, in its role as lead agency, certify that "the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable." Thus, for our purposes, any examination of noise impacts is to be made in the context of the environmental setting of the proposed project. It is not merely an exercise in the nature, physics, propagation and attenuation of sound. Rather, it is an examination of these factors as applied to and as impacting the environment wherein the proposed project is located.

While L90 may designate the background noise level, and perhaps be of value in distinguishing discrete noise events in the noise environment, it is not the most appropriate descriptor of ambient sound levels when analyzing noise impacts in an environmental setting. This is because L90 by its very definition excludes certain noises, usually of a more intrusive nature, such as, as is the case in this matter, noise from aircraft overflights and train horns. But the noise from aircraft overflights and train horns is part of the noise environment experienced by the residents of Coopers Plains every day. Therefore, the establishment of any baseline ambient noise level against which to compare the potential noise impacts from the proposed project should include those everyday noise occurrences. Since the various sounds experienced by a community fluctuate in level and duration over the course of the day, any baseline ambient noise level should be expressed by a descriptor which reflects these fluctuations, and this is precisely what the Equivalent Sound Level (Leq) descriptor accomplishes. As the USEPA document entitled "Protective Noise Levels," points out, "The Equivalent Sound Level is a single value of sound level for any desired duration, which includes all of the time-varying sound energy in the measurement period." (Exhibit 29, p. 4.) Moreover, in the context of environmental noise impacts analysis, the document goes on to assert that "The major virtue of the Equivalent Sound Level is that it correlates reasonably well with the effects of noise on people, even for wide variations in environmental sound levels and time patterns." (Exbibit 29, p. 4.) This USEPA finding comports with the Department's Noise Impacts Guidance which states, "The Leq value provides an indication of the effects of sound on people." (Exhibit 23, p. 12.) Accordingly, in undertaking the instant SEQR evaluation, it is most appropriate to use the Leq descriptor to measure and express the baseline ambient noise level against which the potential noise impacts of the proposed project will be compared. As indicated in Finding of Fact 17, above, an examination of the Applicant's data, gathered and analyzed by its consultant Epsilon Associates, Inc., of Maynard, Massachusetts, in light of the times critical to the Town of Erwin noise ordinance, revealed that the average baseline ambient sound levels, expressed in Leq, for the three receptor locations chosen by Epsilon was as follows: Location 1: 57.8 dBA; Location 2: 51.1 dBA; and Location 3: 55.6 dBA.

The Department's Noise Impacts Guidance contemplates noise impact analysis as comprising a three level process. In the first level, potential adverse noise impacts from the proposed activity are considered and the effects of these impacts at the location of the receptors evaluated after factoring in the attenuation of the noise over distance from the source thereof to the receptor. This attenuated impact is compared to existing ambient levels, hence the importance of the establishing the baseline ambient level at the outset. If this comparison reveals that marginal or significant noise impacts may occur, the second level of evaluation is required, which entails consideration of other attenuation factors as may be present due to topography, vegetation, berms or other structures. Should this level of analysis demonstrate that significant noise impacts will still occur, the third level of evaluation is required, involving a consideration of mitigation options which avoid or diminish significant noise impacts to acceptable levels.

In completing the first level of analysis, it is essential to know the noise levels the proposed project could be expected to generate. This information should be obtained from manufacturers' specifications for equipment to be used in the proposed operation or from actual test measurements taken in the field. Tables C and D of the Department's Noise Impacts Guidance, which list the noise levels of common machinery and equipment are not intended as a substitute for actual data but rather to assist in the first level of analysis to "help determine whether or not noise will be an issue and whether actual measurements should be made to confirm noise levels." (Exhibit 23, pp. 17-18.) The Ebbing report uses these Department Noise Impacts Guidance values in lieu of actual data and thus, at best, provides only a partial first level evaluation. The Epsilon study, however, bases its evaluation upon actual in-the-field measurements of the sound levels of equipment of the type to be used in the proposed mining operation, as well as manufacturer's specifications.

With respect to the second or third levels of evaluation, the Ebbing study gives little, if any, consideration of the noise mitigation and attenuation measures proposed by the Applicant and examined in the Epsilon report, including placement of the permanent structures of the project as far from the community as the geography of the site will allow, maintenance of the vegetative buffer, construction of earthen berms, and the use of stockpiles as noise barriers.

As to the placement of stockpiles to mitigate noise, Department Staff, in its closing reply brief in this matter, has proposed a revision to Special Condition 12 of the draft permit, which would now read as follows:

During operation, the permittee shall direct the dragline operator to stockpile mined material in windrows running parallel to the Cohocton River. The front end loader shall load trucks on the west side behind theses stockpiles. The operator shall construct the stockpiles, on average, 20 feet in height. Material stockpiles in the floodway shall be minimized to the maximum extent practicable, while still affording for the optimum attenuation of noise generated by loader operation. When mining operations cease for more than seven days, all staged material shall be removed from the floodway.

This proposed Special Condition provides clear and enforceable guidance in the implementation and placement of stockpiles to mitigate noise impacts during the operation of the site. The Applicant has stated that it has no opposition to the inclusion of this condition in any proposed permit. Accordingly, should the Commissioner direct the issuance of the mining permit in this matter, I would recommend that Special Condition 12, as herein proposed, be included therein.

As indicated in Finding of Fact 33, above, the Applicant has demonstrated by a preponderance of the credible evidence adduced at the adjudicatory hearing that, with the proposed mitigation measures assumed, total future ambient sound level increases due to the proposed project will exceed existing ambient sound levels by decibel levels ranging from less than 1 dBA to 4.6 dBA. Such levels are well within the acceptable range suggested either the Town of Erwin noise ordinance or the Department's Noise Impacts Guidance. Accordingly, pursuant to 6 NYCRR 617.11(d)(5), the proposed project avoids or minimizes adverse environmental noise impacts to the maximum extent practicable, and such adverse environmental noise impacts will be avoided or minimized to the maximum extent practicable due to the mitigative measures to be implemented as part of the proposed project, including placement of the permanent structures of the project as far from the community as the geography of the site will allow, maintenance of the vegetative buffer, construction of earthen berms, and the use of stockpiles as noise barriers.

Alternative Site Analysis

As noted previously, in making its findings pursuant to the mandates of ECL Article 8, the Department, as lead agency, in accordance with 6 NYCRR 617.11(d)(5), must "certify that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable." To facilitate the consideration of such "reasonable alternatives," 6 NYCRR 617.9(b)(5)(v), directs that the draft Environmental Impact Statement (dEIS) contain "a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor. The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed." Continuing, the Section provides that "the range of alternatives may ... include ... alternative sites," with the proviso that such "site alternatives may be limited to parcels owned by, or under option to, a private project sponsor."

As these statutory provisions make clear, in considering "the range of reasonable alternatives," it is not always incumbent upon the lead agency to select one mining site over another, or none at all. While it is true that "what is reasonable requires a case-by-case analysis," Matter of CECOS International, Inc., Decision of the Commissioner, March 12, 1990, in the first instance, it must be determined under what circumstances the lead agency could direct the development of one mining site over another. Such a direction would only be appropriate where it can be demonstrated that the proposed project will still, even after all reasonable mitigative measures have been considered, occasion significant adverse environmental impacts. Only upon meeting this threshold would consideration of the development of an alternative site be justified.

As is clear from the factual record, adverse noise impacts from the proposed project can be avoided and minimized to the maximum extent practicable. Accordingly, it is unnecessary to further consider alternative sites beyond the analysis provided in the dEIS, as supplemented. See, Matter of Peckham Materials Corp., Interim Decision of the Commissioner, January 27, 1992. Moreover, the submissions supplied by the Applicant and received in evidence at the adjudicatory hearing held herein provided a comparison of the Scudder, Smith and SCL sites and included a description of each site and an examination of various environmental and economic factors related to each project including ecological resources, groundwater, surface water, noise impacts, air quality, visual resources, archaeological impacts, community impacts, property value impacts, and traffic impacts. These three analyses comport with the requirements of 6 NYCRR 617.9(b)(5)(v) and permit a comparative assessment of the alternatives discussed to the level of detail appropriate to the SEQR review in this matter.

CONCLUSIONS

The project, when operated in accordance with the Department's proposed draft permit, including revised Special Condition 12, avoids or minimizes adverse environmental noise impacts to the maximum extent practicable through the implementation of the mitigative measures proposed including, placement of the permanent structures of the project as far from the community as the geography of the site will allow, maintenance of the vegetative buffer, construction of earthen berms and the use of stockpiles as noise barriers.

Since the proposed project will not cause any unmitigable significant adverse environmental impacts, including noise impacts, the consideration of an alternative site for the project need not be explored. The alternative site analysis provided in this matter, as supplemented, is sufficient to permit, for the purposes of this application, the comparative assessment contemplated by 6 NYCRR 617.9(b)(5)(v).

RECOMMENDATION

With the inclusion of Special Condition 12, I recommend that the permit for this project, as drafted by Department Staff, be issued to the Applicant.

FINAL ENVIRONMENTAL IMPACT STATEMENT

The Final Environmental Impact Statement ("FEIS") for this Project shall consist of the following:

Written comments provided to the Department from 19 December 2000 to 31 January 2001 in response to the Department's Notice of Complete Application and Availability of the dEIS issued on 19 December 2000.

Letters:

Blackstone, David. Letter dated 25 January 2001.

O'Rourke, Sarah. Letter dated 24 January 2001.

Smith, Thelma. Letter dated 26 January 2001.

31 January 2001 AFI Environmental report by William Heitzenrater.

E-mail:

Foster, Alice. E-mail dated 18 January 2001.

Lapp, Daniel. E-mail dated 4 January 2001.

Passmore, Pauline. E-mail dated 16 January 2001.

Strzegowski, Wes. E-mail and attachments dated 22 January 2001.

12 February 2001 letter from R. Dalrymple to D. Bimber, also included in Document 2, above.

1 After the close of the record in this matter on April 3, 2003, the Applicant's attorney, by letter dated April 22, 2003, advised the ALJ that the Applicant had recently obtained an option to purchase approximately nine acres of property from a Ralph Scudder whose property is contiguous to the SCL site. The letter states, "The primary purpose of obtaining this option is to move the drum asphalt plant at the SCL Site further away from local residents and is not meant to expand or otherwise change the mining or manufacturing activity at the SCL Site. We thought we would bring this to your attention, even though this has no bearing on the Smith Hill Road application currently under review." Both the attorney for Department Staff and the attorney for CPLA were copied on this letter, and neither has provided the ALJ with comment with respect thereto.